Kerry v. Din
576 U. S. ____ (2015) (2015)
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Rule of Law:
When the government denies a visa to a U.S. citizen's non-citizen spouse, citing a broad statutory provision for inadmissibility on terrorism grounds is a facially legitimate and bona fide reason that satisfies the requirements of procedural due process.
Facts:
- Fauzia Din, a U.S. citizen, married Kanishka Berashk, an Afghan citizen, in 2006.
- Berashk was a former civil servant who worked for the Taliban regime in Afghanistan.
- Din filed a petition to have Berashk classified as an immediate relative, which was approved by the U.S. government.
- Berashk then applied for an immigrant visa to enter the United States.
- Following an interview at the U.S. Embassy in Pakistan, a consular officer denied Berashk's visa application.
- The officer informed Berashk that he was inadmissible under § 1182(a)(3)(B) of the Immigration and Nationality Act, which pertains to "terrorist activities," but provided no further explanation or specific factual details.
Procedural Posture:
- Fauzia Din sued the United States in the U.S. District Court for the Northern District of California.
- The District Court granted the government's motion to dismiss Din's complaint.
- Din, as appellant, appealed the dismissal to the U.S. Court of Appeals for the Ninth Circuit.
- The Ninth Circuit reversed the District Court, holding that Din had a protected liberty interest that entitled her to a more detailed explanation for the visa denial.
- The U.S. government, as petitioner, was granted a writ of certiorari by the U.S. Supreme Court to review the Ninth Circuit's decision.
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Issue:
Does the government violate a U.S. citizen's Fifth Amendment due process rights by denying her non-citizen spouse's visa application and providing only a citation to the broad statutory provision for inadmissibility based on terrorist activities, without offering a specific factual basis for the denial?
Opinions:
Plurality - Justice Scalia
No. The denial of a non-citizen spouse's visa application does not deprive a U.S. citizen of life, liberty, or property, and therefore does not trigger any procedural due process protections. The historical understanding of 'liberty' under the Due Process Clause refers to freedom from physical restraint, which is not at issue here. Even under the modern, expanded doctrine of substantive due process, there is no 'deeply rooted' fundamental right for a citizen to live in the United States with a non-citizen spouse. U.S. immigration history is replete with regulations that have impeded spousal immigration, negating the existence of such a fundamental right. Because no constitutionally protected liberty interest of Din was implicated, no process was due.
Concurring - Justice Kennedy
No. Assuming, without deciding, that Din has a protected liberty interest in her husband's visa application, the government satisfied any due process requirements it may have had. Under the standard established in Kleindienst v. Mandel, an executive officer's decision to deny a visa that burdens a citizen's constitutional rights is valid if it is based on a 'facially legitimate and bona fide reason.' The government's citation to the statutory terrorism bar, § 1182(a)(3)(B), is such a reason. Given Congress's plenary power over immigration and the sensitive national security context, courts should not look behind this justification to demand more specific factual details.
Dissenting - Justice Breyer
Yes. A U.S. citizen has a protected liberty interest in living with her spouse in the United States, which is significant enough to trigger procedural due process protections. A fundamental element of due process is notice of the reasons for an adverse government action. Citing a vast and complex statutory provision like the terrorism bar, which contains dozens of different grounds for denial, is not an adequate reason. It fails to inform the citizen of the government's case and provides no meaningful opportunity to respond. While national security is a vital concern, it does not permit the government to dispense with fundamental due process entirely, especially when less restrictive alternatives like in camera review exist.
Analysis:
This decision significantly reinforces the doctrine of consular nonreviewability, which largely shields visa decisions made by consular officers abroad from judicial scrutiny. By applying the highly deferential 'facially legitimate and bona fide reason' standard from Mandel, the holding curtails the ability of U.S. citizens to challenge the denial of their spouses' visas, especially in cases involving national security. The plurality's narrow, originalist interpretation of 'liberty' also indicates a judicial willingness to limit the scope of due process rights that are not explicitly enumerated or historically recognized. The case solidifies the principle that the political branches' plenary power over immigration can override individual constitutional interests that are affected only indirectly by a visa denial.
